LEGAL EAGLE: The importance of a guilty mind

Published:08:54Tuesday 18 August 2015

I saw someone in a shop take something from a display and then leave without paying. I told shop security and police came and arrested the person for theft. I was interested in the case and happy to give evidence against the shoplifter. But I was later told that the case was dropped because the item was picked up by mistake. I don’t understand this. It seems like a miscarriage of justice.

For most crimes a court requires two things for a crime to be proved: a mens rea and an actus reus. These bits of Latin used by lawyers and courts mean “a guilty mind” and “a guilty act”.

Taking an item without paying certainly looks bad but if someone does something like that without thinking absent mindedly there is no guilty mind even though the action looks like a guilty act.

This is because for theft to be proved – or lots of other offences of dishonesty – there needs to be a particular intention to commit the crime; the person has to MEAN to commit the crime concerned. It cannot be committed “by accident”.

This does not apply to ALL crimes. For example with careless driving (the clue is in the name of the offence) it is enough just to be careless about how you are driving your car. So if you cause a car crash it will not be enough to get you off the hook to say that you didn’t mean to do that.

Another example of how this idea works is criminal damage. If you deliberately damage something meaning to do it that could mean you are guilty of criminal damage. But you could also be guilty of criminal damage if you act in a reckless way and have no particular desire to damage anything.

So for example, if you throw a stone without being too bothered about where it is going – not aiming it particularly – and you end up breaking a window that might be enough for a court to decide you were reckless and therefore guilty of criminal damage by breaking the window.

So you can see that for various different offences various different states of mind have to be proved before courts can convict.

In the case you refer to it could be that in a police interview the person gave such a convincing account about why he or she took the item that the police or Crown Prosecution Service decided that it would not be possible to get a conviction if the case went to court.